Commonwealth v. Read — Trial ArchiveJoseph Paul - Redirect/Recross
181 linesJUDGE CANNONE: All right, Mr. Lally, whenever you're ready.
MR. LALLY: Now, with regard to your testimony as far as that triggering event — well, the two events on 12629B — you testified that that was consistent with the pedestrian collision. Is that correct?
MR. LALLY: Again, if you could tell the jury, why is that consistent with the pedestrian collision?
MR. PAUL: The one specifically — with the speeds and everything that we were referring to — 2 miles per hour in reverse, about. Right? Okay. Yeah. So why I think that's consistent with a pedestrian strike is because of the sudden change in the speed — it drops down by half a mile per hour, the accelerator pedal is staying constant at the same percentage, and the steering wheel angle also turns to the right.
MR. LALLY: Now, your overall opinion is based on what you did as far as your reconstruction. Correct?
MR. LALLY: Is there other information that you had at your disposal in formulating your — from other reports and such?
MR. LALLY: And that would include physical evidence. Is that correct?
MR. LALLY: And that would include witness statements?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained as to form.
MR. LALLY: What, if anything else, did you consider?
MR. LALLY: And witness statements — but that would also include statements of the defendant. Correct? Are you aware that the defendant indicated, in a statement to troopers, that she conducted a three-point turn in the area of 34 Fairview Road?
JUDGE CANNONE: I'm going to allow that question.
MR. LALLY: And what you observed in that triggering event — is that, from that mileage, consistent with the defendant's own statement?
MR. LALLY: Now, I'll ask — if you could, again for the jury, clarify the difference between what you termed as an area of impact versus a point of impact.
MR. PAUL: Yes. An area of impact is broader — a bigger area. A point of impact would mean something specific — "I see right there, that would be the area of impact."
MR. LALLY: If I could ask — the cell phone that was located under Mr. O'Keefe's body, that location, is that also consistent with the linear path that you were testifying about earlier?
MR. LALLY: And do you know whether or not that cell phone was in his hand or in his back pocket or somewhere else?
MR. LALLY: Now, as far as — let me ask you this. You were shown some photographs of some tail light pieces. Sort of. Correct?
MR. LALLY: As far as the area of impact — from what you determined — that was Mr. O'Keefe's sneaker. Is that correct?
MR. PAUL: Yeah, it was within that. When I — what I had for the initial evidence, I said the area of impact was a start — that in that area, prior to the sneaker. Sorry. So what I was saying was, the area of impact was prior to the area — the sneaker was in that path just prior to that area.
MR. LALLY: And why did you determine that it was in that area?
MR. LALLY: And I'm sorry — just "first point of evidence" in relation to what? And sort of how it was — how was the evidence configured?
MR. PAUL: As it was — the evidence, as it was presented to me — it was the first point of evidence away from the furthest point of evidence at that time, away from where the pedestrian may have been.
MR. LALLY: Yes, sir. I'm showing you what's been marked as Exhibit 58. Do you recognize what's depicted in that photograph?
MR. LALLY: And, Your Honor, with the court's permission, if I — okay. What exhibit number is it?
JUDGE CANNONE: 58.
MR. LALLY: Do you recognize what's up on the screen?
MR. LALLY: What do you recognize?
MR. LALLY: And as far as these photographs, and the photographs shown to you by Mr. Jackson on cross-examination — do you know when those photographs were taken?
MR. LALLY: You don't know if those photographs were taken on February 3rd, 2022?
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained.
MR. LALLY: Now, Trooper, if you could — using the laser pointer, I know you've done this on the diagram, but if you could use the laser pointer with regard to what's on the screen, Exhibit 58 — direct the jury's attention to where you believe the area of impact to be between the defendant's Lexus and Mr. O'Keefe.
MR. LALLY: And as far as that linear path that you were talking about — from the area of impact, where did that go from and where did that go?
MR. LALLY: You may take that down. May I approach?
JUDGE CANNONE: Mr. [unintelligible] — yeah.
MR. LALLY: Now, Trooper, if you could explain to the jury — as far as what you were describing as Mr. O'Keefe's post-impact movement, starting sort of with the point of impact between himself and the SUV, to the point where he comes to final rest on the ground.
MR. PAUL: So he was struck along the right side, in the area of the arm, and then he was in post-impact with the Lexus — he rotated counterclockwise and eventually hit the ground and came to final rest.
MR. LALLY: And the ground — based on your understanding of the weather conditions — was frozen at the time, is that correct?
JUDGE CANNONE: Objection sustained. Watch the form, Mr. Lally.
MR. LALLY: Yes. So as far as anything in your testimony about Mr. O'Keefe's actions — does — — that involve purely [unintelligible] — a rotation, is that correct?
MR. LALLY: And as far as 30 feet in the air — do you have any opinion as to whether or not he flew 30 feet in the air?
MR. LALLY: And so, from your training and experience, when it comes to pedestrian collisions, are you able to determine or calculate how much distance someone is in the air and how much distance someone sort of rolls or tumbles to their final resting position?
MR. LALLY: From your training and experience, based on this collision, are you able to determine how far Mr. O'Keefe was traveling in the —
MR. PAUL: — air versus how far he traveled tumbling or rolling after they hit the ground? I do not have a calculation for this specific style of pedestrian crash, due to the sideswipe. So if I did, I could use the formula — it would just vastly underestimate the speed of the vehicle.
MR. LALLY: Let me ask you a little bit about — you're talking about the Searle Pedestrian throw formula, correct?
MR. LALLY: And that's something developed in the course of physics, specific to reconstruction, by someone named Dr. Searle, correct?
MR. LALLY: That's S-E-A-R-L-E — is that correct?
MR. LALLY: And with respect to Dr. Searle's formula, why is that inapplicable in a sideswipe collision —
MR. PAUL: — versus some other type? Because it — it's looking for — not so much the formula, it's how much projection efficiency — how much percentage of the speed of the striking vehicle would have happened in order for the formula to work. The more of the body would strike the vehicle, the more efficient the outcome would be in the speed.
MR. LALLY: In the center of mass that you were talking about, sort of in the collision sequence — what, if any, role did that play in regard to your ability to do that calculation?
MR. PAUL: It would just, like I said, underestimate the speed of the striking vehicle, due to the center of mass — — not within the rear of the vehicle.
MR. LALLY: And not to twist your words or anything — but as far as when you say "underestimate," that would not be an accurate reflection of the defendant's vehicle speed, correct?
MR. LALLY: Now, you were asked some questions about the glass, and indicated that there are a number of reasons why the glass would travel with him — being Mr. O'Keefe. Can you explain what those are?
MR. PAUL: Yeah, the glass could have struck the vehicle also in that same way, could have still been attached to his hand and still gone with him in the same way, it could have been attached to his body in mid-air — there are multiple ways that the glass would have stayed with — — them.
MR. LALLY: Now, speaking of collision sequences — particularly collisions involving multiple vehicles — vehicles are fixed with bumpers, correct?
MR. LALLY: What's the purpose of a bumper on a vehicle?
PARENTHETICAL: [bench conference]
JUDGE CANNONE: Sustained.
MR. LALLY: So — I'm sorry. Again, if I could ask you — what is the purpose of a bumper on a vehicle?
MR. LALLY: And with reference to the scratches that you were asked about on the vehicle — on the right rear quarter panel — what, if any, relationship do bumpers or their — — interaction have to your opinion? Sorry — say it again — with respect to what you just testified about bumpers: you were also being asked questions about scratches on the right rear quarter panel of the vehicle, correct?
MR. LALLY: And what, if any, relationship do the bumpers on the vehicle and their intended purpose have in relation to the scratches that you described?
MR. PAUL: So the bumpers on the side — this wasn't more of a direct-on hit with the bumper, it was more of the side scraping of the paint of the bumper.
MR. LALLY: Now, the presence of Mr. O'Keefe's DNA on the tail light — is that consistent with the pedestrian collision?
MR. LALLY: Now, are you aware that the lab's actual findings were that the glass on the bumper and the glass on the roadway was not found to be consistent with each other — is that your understanding, if you know?
MR. LALLY: And were you also aware that the lab's finding was that the glass on the bumper was consistent with the glass on the road?
MR. LALLY: — had found. Now, in order to construct your diagrams — your testimony, I believe, was that you had used certain data in the process — is that correct?
MR. LALLY: And if I could turn back to that triggering event 12629B — the mileage from the EDR stream data — yes — the three-point turn that you observed, in the 24.2-mile-per-hour straight line, for approximately 62 feet. How far apart, time-wise, within that particular triggering event, were those two incidents?
MR. LALLY: And as far as any of the other EDR stream data that you observed — was there any other triggering event that included the three-point turn?
MR. LALLY: Now, as far as the defendant's path of travel — is it your understanding that that was obtained from a multitude of different witnesses?
MR. LALLY: Now, with reference to — you were being asked questions about the defendant's cell phone, as far as GPS locations. Were you aware that the defendant's cell phone wasn't able to be accessed by law enforcement until 2023?
JUDGE CANNONE: Sustained.
MR. LALLY: Were you aware that the defendant's cell phone had GPS locations turned off on the defendant's cell phone?
JUDGE CANNONE: I'll allow that.
MR. LALLY: Now, as far as placing the vehicle during that triggering event, 12629B — did you use key cycles to put it back at that location at that time?
MR. LALLY: What did you use?
MR. LALLY: And why would you look at the odometer mileage over the key cycles?
MR. PAUL: Because I can physically see the odometer mileage at the vehicle at the time of my inspection.
MR. LALLY: And — well, let me ask you this. In your opinion, as far as that is concerned — sort of backtracking to a specific location — which is more reliable, the odometer or the key cycles?
MR. LALLY: And why?
MR. PAUL: Like I said, you can physically — — see it when you turn the car on, and I know that's the odometer mileage that it's reading on the dashboard.
MR. LALLY: In every key cycle — is that necessarily recorded within the EDR stream data?
MR. LALLY: And why not, sir?
MR. PAUL: It only records stuff that is related to the triggers — they only record stuff that is related to the triggers.
MR. LALLY: Okay, thank you. As far as counsel's hypothetical with regard to the key cycles — is it your opinion that that hypothetical is accurate or inaccurate, and why?
MR. PAUL: Because you also add the odometer mileage onto the key cycle. So those key cycles and odometer mileage are on the same trigger, and — — plus, the data seems consistent with everything else that's going on with this collision.
MR. LALLY: Now, fair to say that you were not outside of 34 Fairview Road on January 29th, sometime around 12:20 to 12:30 a.m., is that correct?
MR. LALLY: And so fair to say that you don't know exactly how Mr. O'Keefe and/or glass or anything he was holding interacted with the defendant's vehicle at that time?
MR. JACKSON: Objection.
JUDGE CANNONE: I'll allow it.
MR. LALLY: And so, based on your training and experience and the number of pedestrian crashes that you've investigated — again, if you could, one last time, just describe to the jury how you — — believe the vehicle interacted with Mr. O'Keefe —
MR. JACKSON: Objection.
JUDGE CANNONE: Sustained. Asked and answered.
MR. LALLY: With reference to what you've described — as far as the interaction between Mr. O'Keefe and the vehicle — why is that your opinion?
MR. JACKSON: Objection.
MR. PAUL: Based on the evidence from the vehicle, based on the injuries to John O'Keefe, the tail light appears to be broken with sharp plastic pieces that could have ripped his arm, and also the dent with the scratches above it is consistent with a hand holding a glass and the glass on top smashing on the vehicle, and the hand smashing the vehicle. You can see there's a line — — between scratches and a dent there.
MR. LALLY: Just very briefly, I just want to make sure I clear something up about the key cycle. You're not suggesting that every key cycle in the history of the car is on this page, correct?
MR. LALLY: I'm pulling up Exhibit 591. Okay. That indicates key cycles that have triggering events, correct?
MR. LALLY: Triggering events are something that the manufacturer includes — basically a list of items that will be a triggering event, correct?
MR. LALLY: It's a list of items basically for mechanics to figure out if there's some unusual driving or unusual event with the vehicle, correct?
MR. JACKSON: But the key cycles go in — — order. They're numerical, one through whatever, correct? And the hypothetical that I gave you on cross-examination — with those driving incidents, each one of those would represent a key cycle, correct?
MR. PAUL: I don't — so in your hypothetical, I mean, assume that it should create a key cycle, but you can't just say that key cycle is from that, because I didn't just use key cycles — I use the odometer mileage on top of it. So you have to have key cycle and odometer.
MR. JACKSON: But interestingly, though — when you testified on direct examination you said your analysis — this was on Friday, before the weekend, by the way. Over the weekend, did you watch anything — — on, I don't know, YouTube or any social media?
MR. JACKSON: Did you have any conversations with Mr. Lally about these key cycles and problems?
MR. JACKSON: Have any conversations with anybody about the issues with key cycles?
JUDGE CANNONE: Jackson.
MR. JACKSON: Did you realize that yourself?
MR. JACKSON: So on Friday you didn't mention that your analysis was based on mileage, did you?
MR. LALLY: Objection.
JUDGE CANNONE: Sustained.
MR. JACKSON: On Friday, did you mention that your analysis was predicated on mileage?
MR. LALLY: Objection.
JUDGE CANNONE: I'll see your — [unintelligible]
MR. JACKSON: May I inquire?
JUDGE CANNONE: Yes.
MR. JACKSON: Paul, on Friday you indicated pretty clearly that your analysis was based on the key cycles, starting at 1164 when you started your testing, and 1162, which was the key cycle you claimed on Friday was at 34 Fairview —
MR. PAUL: It wasn't based on it. That's how I describe it. I said "key cycles" — I based it on — they were close within proximity to each other. But I've always said it's key cycles and odometer knowledge, plus all the information within the triggers themselves. So it wasn't just one or the other.
MR. JACKSON: And you said on Friday that once you started your testing at 1164, it was two cycles earlier that had the triggering events —
MR. JACKSON: — that you claimed were 34 Fairview?
MR. PAUL: Yes. But in the hypothetical, if there were four events — four driving, four key cycle events between 1164 and 1159 — it could not have occurred at 1162, correct? 34 Fairview? In my hypothetical — in your hypothetical, if it recorded a key cycle, then your hypothetical is correct.
MR. JACKSON: Right. And last question: if you got the route of travel incorrect — if your presumption of the route of travel was incorrect on that vehicle in the days earlier — your mileage would be incorrect also, correct?
MR. PAUL: Coming from the odometer? From the odometer reading? The odometer reading is a dominant reading. It's 36 — my —
MR. JACKSON: My point is: your analysis that's based on the odometer reading — 36 miles here, 12 miles there, 2 miles here, 5 miles there — if you got the route of travel wrong, and the route of travel was different, your assumptions about the odometer readings would be incorrect as well, correct?
MR. PAUL: So what I'm — I had to get the path of travel — so what I'm — I purposely put down a range on my Google Images shown because I couldn't tell you definitively a route or a path for every single way. But I know that it's a possibility that she could travel 36 miles within those locations that she traveled post leaving Fairview Road. Or if that mileage was put on at key cycle — — 1162, that would mean — that would be — that the vehicle would already be in Massachusetts State Police custody —
JUDGE CANNONE: Right. Proctor's custody. Jackson — so that's beyond the scope. That's all.
MR. JACKSON: All right.
MR. LALLY: Very briefly — the range that you came up with for the defendant's path of travel, does that fit with the path of travel and the odometer reading, putting the defendant's vehicle in the area of 34 Fairview Road when it does the three-point turn, and then eight minutes later when it travels 24.2 miles per hour in a straight line in reverse for approximately 62 feet?
MR. LALLY: Nothing further.